Monday, September 30, 2013

Fannin County District Judge Laurine Blake erred, said the Texas Court of Criminal Appeals, when she allowed defendant Vaughn Bell, accused of drug possession, to be shackled in her courtroom during trial without providing any justification except that, "Everybody who is in custody has the same necessity of restraint."

That view is plainly wrong, wrote Judge Keasler in the majority opinion (pdf), as "courts have uniformly imposed an express prohibition on routine shackling, as a defendant should only be shackled 'as a last resort.'" He concluded that the "trial judge erred in ordering Bell shackled without finding a particularized reason for such action apart from a general concern for courtroom security and the prevention of escape."

As is so often the case, though, when Texas courts flagrantly violate defendants' rights, the CCA found the error harmless because there was no evidence that the jury could see the shackles and chains binding the defendant's legs and hands to the courtroom table. Judge Blake ordered defense counsel to stack briefcases beside the table
to block jurors' view of Bell's shackled legs and suggested the problem
would be solved if "the defendant will just be mindful about movement of
his legs during trial." For eight members of the CCA, that was sufficient.

Keasler granted that:

The judge's statement that '[e]verybody who is in custody has the same necessity of restraint' evinces, at best, a generalized concern for courtroom security and, at worst, a propensity to shackle defendants in custody during trial as a matter of course. Neither suffices: the former is an insufficient reason; the latter a distasteful practice '[reminiscent] of an era when the accused was brought from prison to the courtroom in chains, unkempt and wearing (at best) prison attire, following which he was exposed to a jury in the worst possible light.' Under these circumstances, it was clearly error to order Bell shackled during trial.

But he and seven other CCA judges chose not to apply the standard used by the 5th Circuit Court of Appeals and the US Supreme Court in such cases, instead relying on their own Texas rulings that predate the relevant federal precedents.

Judge Meyers dissented (pdf), declaring "I disagree that this error was harmless. Unlawful and uncalled for shackling has a substantial effect on the jury's view of the defendant. The fact that a defendant is shackled without cause gives the jury the perception that he is a much more dangerous criminal and may prevent him from receiving a fair trial." Because the State could not prove beyond a reasonable doubt that the shackling did not contribute to the verdict - the standard under the US Supreme Court's ruling in Deck v. Missouri - he "would hold that the Appellant was harmed by the trial judge's error."

Two issues jump out at Grits on this one: First, who is surprised that the CCA chose to ignore federal precedents in order to sustain Bell's drug conviction? I swear, if this court were a band they'd be named the "Harmless Errors": Those must be their favorite two words (besides, perhaps, "writ denied").

More surprising is that in the 21st century a Texas judge (wrongly) believes it's okay to routinely shackle drug defendants during trial, as Judge Blake apparently would have it. That's a disgraceful stance, the shame of which is not mitigated in the least by the high court's refusal to hold Judge Blake accountable.

Thursday, September 26, 2013

A friend of the blog is giving a presentation tomorrow on the topic of executive pardons in Texas, so Grits updated my running chart of executive clemency decisions in the Rick-Perry era to include data from FY 2011 and 2012. Here it is:

So far, Gov. Rick Perry has granted about one out of every 33 clemency requests received by the Texas Board of Pardons and Paroles since he took office in 2001. By contrast, as president, George W. Bush granted clemency to one out of every 55 applicants during his two terms; for Barack Obama, the figure so far is one out of 239, Peter Ruckman at the Pardon Power blog reported in August. Ronald Reagan, by contrast, granted one out of every eight clemency petitions received during his tenure. For Richard Nixon, it was one out of three.

One aspect of these Texas data Grits finds fascinating: The large number (416) of applicants for whom the Board of Pardons and Paroles recommended clemency but the Governor did not grant it. That happened in a whopping 67% of cases in which the board recommended mercy over those 12 years. It would make quite an interesting analysis for some reporter or academic to examine in greater detail cases in which the BPP - who are all Perry appointees and by no means bleeding heart liberals - recommended granting clemency but the Governor denied it. Texas' parole board has a well-earned reputation as a bunch of hard-asses, but they appear more inclined to mercy than the politician who appointed them.

America's Founding Fathers viewed clemency as an essential check on legislative and judicial overreach, one that's been emasculated beyond recognition in the last quarter-century. Perhaps that's attributable to infamous cases like Gerald Ford's pardon of Nixon or Bill Clinton's pardon of a prominent campaign contributor on his way out the door. Or maybe, in this hyper-punitive era of mass incarceration, where the United States has less than 5% of the world population but 25% of its prisoners, the values of forgiveness and mercy simply have fallen out of fashion.

Alexander Hamilton argued in Federalist Paper #74 that without "easy access" to clemency, "justice would wear a countenance too sanguinary and cruel." Who doubts that outcome is precisely what's represented by the data in the chart above?

Wednesday, September 25, 2013

Dallas Mayor Mike Rawlings issued a public apology on behalf of the city for a horrific murder of a 12-year old suspect by a Dallas police officer 40 years ago. Here's a description of the terrible episode from the Dallas News editorial board:

When Santos and David Rodriguez were pulled from their grandfather’s
home in the early-morning hours of July 24, 1973, by two Dallas police
officers, Hispanics made up less than 10 percent of Dallas’ 850,000
residents and were concentrated in a neglected area north of downtown
called Little Mexico.

The two officers drove the brothers to a
vacant lot behind a Fina gas station on Cedar Springs, where a vending
machine had been robbed of $8. Officer Darrell L. Cain tried to force a
confession from 12-year-old Santos by playing Russian roulette with the
boy. The second time he placed the gun to Santos’ head and pulled the
trigger, it fired.

The 12-year-old’s grisly death and the
relatively lenient treatment of his murderer (Cain was released on a
$5,000 bond), galvanized the Hispanic community. It was a bellwether
moment that came to symbolize Dallas Latinos’ sense of being overlooked
and disregarded — and the need for empowerment.

Although there
began to be changes — Cynthia Villarreal became the first Latina to join
the Dallas Police Department in 1975, for instance — the lack of an
official apology from the city of Dallas became further evidence of the
city’s perceived indifference to its Hispanic citizens.

Today,
Hispanics make up more than 40 percent of Dallas. They are the largest
ethnic group in the city. And yet, during a July memorial service
marking the anniversary of the murder, rather than extending a true
apology, the city offered a retread resolution vowing not to let another
such incident happen again.

Rawlings was on vacation at the time; he says he had been unaware the city had never apologized until he read about it in The Dallas Morning News. “This should have been done within the first weeks of when I came into office,” he said.

Granted, you'd need $4 in addition to that apology to get a latte at Starbucks; it's not worth much on its own at this late date. Still, Rawlings was right to make the gesture. This was an extreme example of why custodial interrogations by police should be recorded at the station house. If the gun hadn't gone off, who thinks anyone would have ever believed the brothers' story about Officer Cain's coercive interrogation methods? Indeed, three years prior, Cain had already been cleared of shooting a fleeing 18-year old black boy because authorities and a grand jury didn't believe witnesses who said "the suspect was shot to death as he lay wounded and pleading for his life."

As a postscript, Cain was convicted of "murder with malice" for killing David Rodriguez but the jury sentenced him only to five years, according to the Court of Criminal Appeals opinion sustaining his conviction.

McAllen started soliciting proposals for a
privately operated jail, which would hold inmates under the city’s
contract with the U.S. Marshals Service, during July. Two months later,
only Boca Raton, Fla.-based GEO Group replied.

“Given the discussion and debate
we’ve had over the last few weeks on this, it’s my recommendation that
we reject the single offer,” Rodriguez said, adding that if the
Commission desired, the city could explore alternatives and seek new
proposals later. That reversed an earlier recommendation from the city
Purchasing Department.

If opened, the proposal would have become public, which weighed on the Commission’s decision. The Monitor and others had requested the document.

That last paragraph cracked me up! It's one thing to decline GEO's offer, but what might have been in the RFP response so embarrassing to city government that they don't even open their mail? Alas, we'll never know. Glad the project went down the tubes, though.

Even so, this may not be the last we hear of the idea. A local TV station reported that McAllen Police Chief Victor Rodriguez "told Action 4 News that he is for the prison and just wants more options."

Tuesday, September 24, 2013

District Judge Ken Anderson, who as Williamson County District Attorney prosecuted Michael Morton in the 1980s, allegedly withholding exculpatory evidence from the defense, has finally, formally resigned, Brandi Grissom reported at the Texas Tribune. Apparently the move was prompted by his looming trial date next week regarding a "complaint from the State Bar of
Texas that could end with Anderson's license to practice law being
revoked over the Morton matter. That hearing remains scheduled
regardless of Anderson's resignation," reported KXAN-TV.

Grits must admit, I thought Judge Anderson would ride this out til the bitter end. He seemed to care little about the disgrace he brought to the office and has never admitted the least culpability in Michael Morton's false conviction. Perhaps his resignation tells us the man isn't completely shameless, or perhaps he was just backed into a corner.

No one’s talking right now about what may, or may not, be going on behind the scenes. But on Wednesday, WilcoOnline.com posted
a story—which has since disappeared—citing “unconfirmed sources” who
said that Anderson has worked out a deal in which he would surrender his
law license and spend ten days in jail in exchange for the dismissal of
both the criminal and civil cases against him. No word on whether these
“unconfirmed sources” are reliable or not.

Whatever happens, it’s an ignoble ending for the man who the Texas
bar once named “Prosecutor of the Year.” Anderson, once a well-respected
member of the community, had recently set his sights on obtaining an
appointment to the Court of Criminal Appeals. Now, even if he somehow
avoids standing trial, it may not be the end of his troubles. This week,
state Senator Rodney Ellis told Brandi Grissom at the Texas Tribune that
he hoped local officials would review additional cases that Anderson
had prosecuted in the past to see if there had been other “miscarriages
of justice.”

The El Paso Times' Marty Schladen had a good article published Sunday ("Reform sought in Texas surcharge program," Sept. 22) focusing on efforts by Texas House Homeland Security and Public Safety Committee Chairman Joe Pickett to modify the state's Driver Responsibility Surcharge - a civil penalty tacked on top of criminal fines for certain traffic-related violations. The article suggested that, "The debate is of particular relevance to El Paso
because the city's drivers lead the state in some of the offenses that
lead to charges under the responsibility program." In particular:

El Paso drivers appear to lead the state in the number surcharges they're hit with.

In a DPS listing of the 10 Texas ZIP codes with the
most surcharges, four were in El Paso. Of the 538,000 surcharges on the
list, almost half -- 236,000 -- were for El Paso drivers.

Despite the staggering figures presented in the chart on the right, Pickett seems unwilling to contemplate full-on abolition of the surcharge. "I'm not proposing to scrap the program," he told Schladen, "I'm just trying to make it more effective." Regrettably, this program will never be "effective." Enacted in only seven states during a flurry around the turn of the century, two have already repealed similar laws, reported Schladen.

Besides the preponderance of El Paso zip codes, Dallas County stands out from the pack. Plus, clearly many zip codes outside the top ten still have tens of thousands of people liable for surcharges. These are enormous numbers of voting-age Texans we're talking about. If Grits were still advising political campaigns, I'd suggest state rep and senate candidates make abolishing the surcharge a campaign issue: Get the lists of surcharge-owing drivers under open records from DPS, match them to the voter rolls, and target those drivers for voter registration and/or GOTV with messages saying they'd try to abolish it if elected.

Last month, the Texas Department of Public Safety offered recommendations for streamlining the program and improving collections in a document Grits recently acquired under the Public Information Act (see here). Some suggestions may be beneficial to drivers while others are merely aimed at mulcting the maximum amounts from them. These ideas, summarized below, were clearly not intended to all be implemented together but are atomic proposals designed to be broken out into piecemeal reforms. Most would require statutory changes in 2015:

Eliminate (instead of merely reduce) surcharges for drivers under 125% of the poverty level.

Allow DPS to share social security numbers with the collections vendor.

Apply recent extensions of installment plans to older cases.

Develop a "tiered settlement" program to collect lower amounts on older surcharges.

Allow DPS to access address information from the Department of Insurance and vehicle registration sources.

Simplify/clarify language about surcharges on the citation and require courts to both provide information about the surcharges and reduction programs at the time of conviction.

Expand the military deferral program to include surcharges for DWIs and too many points.

Allow DPS to change the surcharge amounts for various categories of offenders.

Require probation or deferred adjudication of all first offenses for Driving With License Invalid. (This offense was already lowered from a Class B to a Class C offense because it was overwhelming local jails.)

Lowering all the surcharge amounts and applying them for only one year instead of three.

Expand the incentive program to "include reductions for compliance with the law or rehabilitation." (This could be done by agency rule.)

Another set of suggestions were labeled as having the lowest probability of success:

Impose additional consequences such as "liens against property, intercepting IRS refunds and lottery winnings, denying passports, placing non-payers on probation, requesting jail time and collecting unclaimed property from the Comptroller."

Allow drivers to make cash payments through wire transfer stores.

Allow community service in lieu of surcharges.

Make the No Insurance, DWLI and No Drivers License surcharges part of the point system, leaving DWIs as the only conviction-based surcharge. (This should have been much higher up in their potential effectiveness rankings!)

Authorize the vendor to receive "tiered compensation" for older surcharges.

Finally, DPS suggested the following potential administrative changes to the program, some of which they could and should have done long ago:

Eliminate the notarization requirement for application to the DPS indigency program.

Implement another Amnesty program, this time actually promoting it aggressively and advertising it in the media. (DPS should not wait for the Lege to tell them to do this!)

Allow customers to submit payments through PayPal.

Advertise the names of drivers with licenses suspended for non-payment of surcharges. (DPS says this would help with notification but it seems to me like a suggestion for public shaming).

Allow drivers to apply for occupational licenses through an online portal without having to hire an attorney.

If the Lege can't muster the political will to abolish the program, Grits supports many of these proposals as modest improvements over the status quo. (Note to the Public Safety Commission: Enact a second Amnesty program now!). But as the Texas Criminal Justice Coalition's Ana Correa told the El Paso Times, really the state should abolish the surcharge. Even the best of these suggestions amount to putting lipstick on a particularly ugly pig.

Monday, September 23, 2013

Grits is swamped with work this week and blogging will be light, but here are a few odds and ends that merit readers' attention:

Kerry Max Cook update
The Austin Statesman reports that Kerry Max Cook's "lawyers will soon file a petition for actual innocence in Smith County" seeking to finally, formally overturn his false conviction. Cook is one of a small fraternity of Texans who were falsely convicted, sent to death row, and lived to tell about it. Grits has no doubt at all regarding Cook's innocence and wishes him luck.

Houston Chron critiques overuse of pretrial detention
Following up on an earlier report Grits discussed here regarding the relation between jail overcrowding and the ability of defendants to make bail, the Houston Chronicle editorial board this week decried "an environment created by criminal court judges and prosecutors largely
inured to the hardships and injustices routinely placed on the poor; and
with no evident recognition of a cruel form of double jeopardy for the
guilty, and unlawful confinement foisted on the innocent.."

Courts flailing on warrants for location data
Here's an excellent summation from the Electronic Frontier Foundation's Hanni Fakhoury of the current status of US court rulings regarding law enforcement's access to cell-phone location tracking data. Bottom line: It's a conflicted mess. Texas just missed passing a warrant requirement for cell-phone location data during the 83rd session. Though the warrant requirement was vigorously opposed by law enforcement, it passed the Texas House by a 126-4 margin and came within a hair of making it to the Governor's desk. By 2015, the debate surrounding these topics will have matured considerably and hopefully Rep. Bryan Hughes, Sen. Juan Hinojosa, Sen. Craig Estes and Co. will try again. Legislatures, not the courts, should be calling these shots.

Orin Kerr imagines the 'next generation' of electronic privacy legislation
George Washington University law professor Orin Kerr has a new paper (pdf) out on "The Next Generation Communications Privacy Act" offering suggested amendments to the outdated 1986 Electronic Communications Privacy Act (ECPA). In his earlier writing, Kerr staked out a position arguing that civil libertarians should trust the intent and application of the Patriot Act because it merely built on this flawed 1986 law, all the while offering no substantive critique of ECPA. This paper demonstrates why those arguments, to me, were particularly unconvincing: Kerr's earlier work pretended Fourth Amendment fans should be comforted by the Patriot Act doubling down on flaws in surveillance law in ways that most sensible people find alarming (e.g., the NSA's mass collection of phone call metadata).

That said I agree with much (but not all) of this latest essay, though I consider his suggestions incomplete. Some of it - like standardizing a warrant requirement for email contents and abolishing the outdated distinction between "electronic stored communications" and "remote computing services" - were addressed in the new Texas warrants-for-email statute your correspondent helped the Texas Electronic Privacy Coalition get passed this spring. (There's an ongoing push to update federal law in a similar fashion.) I also liked some of his suggestions for minimizing electronic data collection and imposing a particularity requirement, which I'll surely be revisiting for ideas before the Texas Legislature reconvenes in 2015. However, notably absent from the paper is a fix to what Justice Sonia Sotomayor has identified as the pivotal flaw in electronic-era Fourth Amendment jurisprudence: The third-party doctrine, which holds that we have no privacy rights regarding data shared with a vendor or another person. That's a drive-a-truck-through-it-sized loophole in the era of cloud computing. Kerr has been perhaps the most vocal defender of the third-party doctrine outside of law enforcement so it's unsurprising this paper failed to address it. But any "next generation" version of ECPA would be woefully inadequate if it failed to confront the question.

Brandi Grissom at the Texas Tribune has an excellent story published yesterday about the relationship between mental illness and violence inside Texas prisons. Here are some notable excerpts:

The most violent prisons in the Texas state system share a common factor: They house a high proportion of mentally ill inmates.

The Texas Tribune analyzed violent-incident data from 99
state prisons from 2006 to 2012, and found far more incident reports at
facilities housing high numbers of mentally ill, violent offenders than
at other prisons. ...

Among the five units with the highest number of reports are the state’s three psychiatric facilities. In addition, the William P. Clements Unit,
which is not a psychiatric facility, but houses 1,800 mentally ill
inmates among a population of 3,500, is in that group, according to
Texas Department of Criminal Justice data. ...

From 2006 to 2012, Clements inmates and officers were involved in about 6,600 violent incidents — those
in which an assault was alleged, force was used, a weapon was involved
or a disturbance was reported — outpacing all other prisons. On average,
there were more than 25 reports for every 100 prisoners each year. In
those years, there were 77 allegations of sexual assaults at Clements
and 264 incidents in which inmates lobbed bodily fluids.

According to
the reports, officers used chemical agents to subdue inmates more than
1,500 times, and offenders were found with weapons on 411 occasions.

After dipping significantly from 2006 to 2007, the
number of violent incidents at Clements rose to 1,093 in 2011 and more
than 900 in 2012 from fewer than 800 in 2007.

[UT LBJ School instructor] Deitch called the numbers “overwhelming.” But Clements
is not the most violent per capita. Reports of violent incidents are
more prevalent at smaller institutions that house only psychiatric
patients. At the John Montford Psychiatric Unit in Lubbock, the average of violent incident reports was 43 per 100 inmates from 2006 to 2012. The Beauford H. Jester IV Unit near
Richmond, which houses some of the most violent mentally ill inmates in
the system, had 41 incident reports per 100 inmates during that time.
The average for the 99 Texas prisons analyzed by the Tribune was less
than 8 per 100. ...

The state system is facing an increase in prisoners requiring
psychiatric care, a trend seen in the criminal justice system nationwide
in recent decades. The number of inmates treated for mental illness by
the University of Texas Medical Branch, which provides most inmate care
in Texas prisons, grew from about 14,500 in August 2008 to nearly 17,900
in August 2012. More than 15 percent of the more than 151,000 inmates
have been given a diagnosis of some form of mental illness.

Jails and prisons are the main institutions through which American society presently manages mental illness - one of the great tragedies of our generation and one for which there is seemingly no solution in sight. SEE ALSO: A sidebar from the Trib titled, "Psychiatric prisons see more violence."

RELATED: See coverage of the Right on Crime campaign's effort to export the "Texas model" of sentencing reform to Oregon and pushback by Democrats there. An Oregon DA offered this criticism, which in Grits' view is a fair one: “It is deceptive to suggest that because other states started out with outrageously high incarceration rates and reduced those rates slightly, Oregon should follow suit...Other states should follow our lead and reduce their incarceration rates to the rates we have always had.” While I generally agree with Right on Crime, I also agree with that sentiment. According to the Bureau of Justice Statistics (pdf), in 2012 Oregon imprisoned its citizens at a rate of 378 per 100,000 population compared to 601 in the Lone Star State. Texas still has a long way to go.

Wednesday, September 18, 2013

The American Bar Association's Individual Rights and Responsibilities section has issued a book-length 500 page report (pdf) on the death penalty in Texas. Find an 18-page overview here (pdf). Looking through the summary, the topics raised appear mostly related to innocence issues with implications far beyond the death penalty, like eyewitness ID procedures, recording interrogations, and ensuring high-quality indigent defense. There's a ton of detail and Grits may soon come back to examine other aspects of the report, but for now I wanted to highlight an interesting observation about habeas corpus proceedings that I'd never considered before:

Most capital habeas petitions are dismissed in a two - or three - page summary order issued by the Court of Criminal Appeals, whereas appellate courts in other death penalty states issue detailed opinions in capital post-conviction cases. Perhaps as a result of this practice, the Court of Criminal Appeals has failed to address claims that later led to relief in federal proceedings. This also creates a problem for death row petitioners and habeas lawyers attempting to research their cases, as there is little case law developed on capital habeas proceedings despite the frequency of death sentences imposed and executions carried out.

Like most of the other issues discussed, that observation applies equally to non-capital habeas writs, which are typically dismissed with at most a bare-bones explanation and usually not even that. I'd never thought about how that failure to justify denials undermines the Great Writ, but it's an excellent point.

Even after a recent tax increase, the McLennan County Commissioners Court has been forced to divert funds from other county departments to pay for higher-than-usual indigent defense costs and operation of a nearly empty jail facility built on spec for which the county can't find contract inmates. The Waco Tribune Herald reported today:

The court transferred $150,000 to the indigent defense budget and
about $450,000 to pay for overflow inmate costs, which lowered the
contingency account from a little more than $1 million to $408,553.

In last week’s meeting, the court transferred about $800,000 from unused salary accounts to subsidize the escalating expenses.

The cost of incarcerating overflow inmates at the
Jack Harwell Detention Center and providing indigent defense could
reach as high as $9 million in 2013, which has caused unforeseen strain
on the county’s 2013 contingency account. About $7.6 million was
budgeted for those two items in the current fiscal year.

The McLennan County Jail on State Highway 6 can
house more than 900 inmates, but when it reaches capacity, the county
houses its inmates at the Harwell center.

Last month, the Trib reported that hoped-for immigration detainees from US Immigrations and Customs Enforcement were not forthcoming. At the time, County Auditor Stan Chambers warned commissioners that increased jail and indigent defense expenses are driving up taxes and bleeding away the county's contingency funds: “You need to be very careful about your decisions
going forward because we’re going to need that [contingency budget] to fund these two line
items,” he told commissioners.

The Trib's editorial board puts great stock in "County Judge Scott Felton’s promise to
assemble a Criminal Justice Coordinating Committee to better coordinate
trials, plea deals, inmate transfers and other criminal justice matters
that, left unattended, can drive up the bills for taxpayers
unnecessarily." But Felton and the commissioners court can't control DA Abel Reyna's mercurial prosecution decisions. The county's egregious doomsday deal contract for the jail is already a fait accompli. And the penny ante cost savings measures being implemented hardly amount to a drop in the bucket. It's not a lack of "coordination" causing McLennan's budget crisis but a perfect storm of bad public policy across county government.RELATED: When tuff on crime becomes tuff on taxpayers: McLennan County jail, DA edition.

Tuesday, September 17, 2013

City of Houston victim advocate Andy Kahan allegedly either illegally accessed confidential inmate files or lied to the media to try to prevent convicted murderer Jon Buice from being paroled, Houston TV station KTRK's Ted Oberg reported (Sept. 17). Here's how Oberg summarized the events that led to the revelation:

In an interview for an upcoming documentary called "Where's Heaven,"
Kahan said he somehow learned details of Jon Buice's confidential
prison discipline record two years ago. In the on-camera interview, he
read to the producer, Alison Armstrong, a list of prison infractions.
Kahan admitted he didn't know what they were for. Buice's attorney says
they were for having an inappropriate relationship with a prison
employee, hanging a clothesline in his cell after proper hours and
having sunglasses in his cell without a commissary receipt.

Texas law says that information is supposed to be kept private. It's
not supposed to be used to fight against parole, but Kahan somehow got
it and used it to argue Jon Buice shouldn't be released from prison.

Kahan wouldn't talk to us about it, and his bosses at HPD refused to
answer questions as well. Kahan did tell that documentary maker how he
got it.

"A state representative managed to get us documents
showing that Jon Buice had some disciplinary infractions," Kahan told
producer Armstrong on camera.

He didn't tell the crew which
lawmaker gave him the information. He claimed he didn't know it was
confidential. The law is clear it is confidential and it was when Kahan
gave the interview. Three months later, Kahan repeated the same story to
the same documentary crew in another on-camera interview: "As a state
representative, you have a lot more power than myself or anyone else for
that. And so they had to comply with her request and that's how we
discovered that he did indeed have a disciplinary record."

When
asked if HPD should be breaking the rules to keep a confessed killer in
prison, Buice's attorney Bill Habern, said no, adding that is certainly
partially what he thinks happened in this case. Habern reported it to
the Travis County DA, and that's when Andy Kahan's story apparently
started to shift.

In early August, the Texas Tribune
reported Kahan initially said he had, "no earthly clue" about the
information and said victim's mother, Nancy Rodriguez, got it. Nancy
Rodriguez told Eyewitness News that as well.

Kahan told
Eyewitness News on the phone in August he got "notes" from a state
representative, but denied getting any documents. Then as the Travis
County DA was asking questions, documentary producer Alison Armstrong
says Kahan called her saying he lied in those two interviews with her.

Armstrong told us Kahan told her, "I threw you a red herring."
She says Kahan told her he was trying to counteract what he called the
lies of the other side.

The Travis County DA reportedly has closed its investigation without filing any charges. But the fact that their inquiry caused Kahan to allegedly admit lying to a documentary filmmaker at a minimum amounts to "bad optics," as the public relations folks say. OTOH, unlike illegally accessing inmate disciplinary documents, lying to the press is not a crime. (Hell, for some it's a hobby.) So perhaps the admission was worth it to keep the Travis County DA off his back. Now the question becomes: Will the episode cost him his job? Smart money likely says "no" - Kahan has powerful allies within Houston city government - but still, this is a pretty ugly turn of events.

The Texas Tribune offered up the first coverage I've seen outside of this blog regarding the looming departures of Judges Tom Price, Cathy Cochran and Paul Womack - one-third of the Texas Court of Criminal Appeals - which will leave three open seats to be filled in next year's elections. But despite my respect for reporter Brandi Grissom, the coverage struck me as odd.

For starters, the story announced the departures but, unlike Grits' earlier coverage, failed to identify any of the candidates running to fill their seats. The fact that these incumbents aren't running again has been known in legal and political circles for months. The real news is who might replace them.

Also, though no defense counsel were quoted in the story, Brandi did quote Tarrant County appellate prosecutor Chuck Mallin "who has practiced before the court since the 1970s." He said he viewed the court's "decisions over the last decade as 'middle of the road.'
And that's where he'd like the court to remain." Come again? The only thing more preposterous than calling the Court of Criminal Appeals under Presiding Judge Sharon Keller "middle of the road" is for a media outlet to quote a prosecutor mouthing such an absurdity without providing a rebuttal.

As of this writing, there's not a single "middle of the road" vote on the entire court. Instead, the spectrum runs from conservative judges who rarely side with the defense to a more knee-jerk faction led by Judge Keller who reflexively rule for the government in virtually every circumstance.

The three departing judges fall into the former group, at least occasionally providing common-sense ballast to offset the Big-Government Conservatism of Keller and Co.. In any other high court in America they'd be considered part of the extreme right, but on the Texas Court of Criminal Appeals they're ostensible "moderates." By contrast, Keller's cohort often come off less like judges than prosecutors in robes.

What Mallin called the "middle of the road" in reality turns out to be the right-hand shoulder. And if one or two of these departing judges are replaced by Keller clones, there's a real risk the court will just veer off into a ditch.

Criminal defendants too poor to bail out of jail prior to trial
typically end up with a harsher punishment in Harris County than those
with resources to pay for their freedom, according to a new study of
more than 6,500 cases.

The study showed that the
poor and others locked up weeks or months pretrial often pay in advance
for alleged crimes - even when proven innocent - and usually end up with
tougher punishments, too, according to an analysis by Gerald R.
Wheeler, a Ph.D. researcher who served as director of the Harris County
pretrial department from 1977-83. Wheeler and attorney Gerald Fry
examined felony and misdemeanor cases processed in Harris County from
January 2012 to June 2013.

Many defendants unable to
post bond spent weeks or months in jail awaiting punishment even for
relatively minor offenses, such as possession of small amounts of drugs
or misdemeanor charges like trespassing.

For example, first-time
felony offenders who were unable to post bond spent an average of 68
days in jail before having their cases resolved, the study showed. Those
who remained jailed for drug possession - a common charge among Harris
County jail inmates - were much less likely to win dismissals or
deferred prosecutions than those able to afford to bail out, the study
showed.

According to the report, defendants able to make bail experience:

86% fewer pretrial jail days

333% better chance of getting deferred adjudication

30% better chance of having all charges dismissed

24% less chance of being found guilty, and

54% fewer jail days sentence

Another remarkable detail: "In drug possession cases, 55 percent of those who remained in jail got deferred prosecution or had cases dismissed compared to 83 percent of those who posted bond." That's an extraordinary disparity.

The study also exposed the falsity of claims by surety bondsmen that their clients are more likely to behave pretrial than if they received a personal bond. “'Surety' bond defendants have higher bond forfeiture and revocation rates than personal bond defendants. However, little differences in absconder rates were found between financial and non-financial bail cases," the analysis found.

Monday, September 16, 2013

Cops tweeting from their shifts. Grits supposes, in retrospect, it was inevitable; indeed, it could eventually become both a constant and ubiquitous public relations tool. For now, though, it's just an occasional gimmick. Last week, several Texas police departments participated in a "Tweetalong" - a portmanteau of "Tweet" and "ride-along" - where officers tweeted what they were doing from their shifts. Or at least, to paraphrase the Grey Lady, all the news that's fit to tweet. There was apparently a previous Tweetalong over the summer. See the string at #tweetalong.

Arlington Police Department employees will undergo random drug and alcohol testing starting as early as next month after a federal investigation earlier this year involving possible illegal use of steroids by some officers.

The Arlington City Council has given initial approval for $60,000 in the upcoming fiscal year, which starts Oct. 1, to expand the department’s drug testing policy to include all 640 sworn police officers. Previously, the department only required testing for new hires, for officers receiving promotions or for employees working in specific areas where they regularly come in contact with drugs, such as the narcotics unit, property room or the jail.

In June, the FBI arrested 17-year veteran police officer Thomas S. Kantzos, who they said had accessed law-enforcement-only databases to tip off a dealer from whom he had been buying steroids for himself and other officers for years that he was under police surveillance.

A second officer questioned by federal investigators, David Vo, committed suicide the day Kantzos was arrested. A third officer, Craig Hermans, resigned from the department in August after being placed on paid administrative leave in connection with the investigation.

Arlington PD has struggled with this issue for years. This was long overdue.

Friday, September 13, 2013

The September newsletter from the Texas Indigent Defense Commission has enough interesting tidbits in it to merit a reference. Here's a notable, informative excerpt from his opening letter:

Following
a busy legislative season I would like to bring to your attention
several items that will impact counties and their indigent defense
systems.

Based
on the Commission’s FY14 budget, most counties will be eligible for a
special, one-time formula grant payment disbursing funds that were
accumulated in the Fair Defense Account but not appropriated in the
legislature’s previous budget. We are working to expedite the
distribution of these funds and anticipate the timing of this special
payment to be in December 2013. [Ed note: Merry Christmas!]

The
legislature also created several new indigent defense reporting
requirements for counties in HB 1318 regarding attorneys handling
indigent cases, discussed in greater detail below. We have reached out
to county auditors and other stakeholders to help define a strategy for
implementation of this legislation that will be most effective.

In
addition to the new reporting requirements, HB 1318 directed the
Commission to conduct a weighted caseload study. We have partnered with
the Public Policy Research Institute at Texas A&M to conduct the
study. Little is currently known about the amount of time being spent to
defend criminal cases in Texas. Moreover, the most commonly cited
national standards regarding attorney caseloads in public defense were
developed in 1973 by the National Advisory Commission on Criminal
Justice Standards and Goals and appear to be based on a consensus of
opinions rather than on objective evidence. A careful study of actual
practice will
shed light on the time it takes to provide appropriate representation in
different kinds of cases and can facilitate a more evidence-based
discussion about caseloads for attorneys handling indigent cases.

Looking
ahead, TIDC is excited about our upcoming Indigent Defense Workshop for
Texas county officials on October 28-29. In addition to covering
recent developments in indigent defense, the workshops will share
valuable information on defender programs for mentally ill defendants
and opportunities for improving indigent defense through better
information management. The Indigent Defense Workshop Agenda and Registration Information
is available here.

Following up on HB 1318, the newsletter provided detail about new county reporting requirements breaking out spending by attorney:

The Commission has been working with stakeholders to develop forms and processes to implement HB 1318 by
Representative Sylvester Turner. The bill seeks to gather information
on caseloads handled by attorneys providing representation to indigent
defendants via two new reports beginning in 2014. The first requires
attorneys handling such cases to report to each county annually by
October 15th information for the preceding 12-month period (October
1-September 30) that describes the percentage of the attorney's
practice-time that was dedicated to 1) Adult criminal cases in that
county’s district and county courts and 2) Juvenile delinquency cases in
that county’s district and county courts.
The second requires each county to submit to the Commission annually the
information provided to the county by those attorneys described above,
along with information that describes for the same 12-month period the
number of appointments made to each attorney accepting appointments in
the county beginning November 1, 2014.

Commission staff has been meeting with a variety of stakeholders,
including counties, courts, and the criminal defense bar, to find ways
to implement HB 1318 in a seamless manner while providing meaningful
information to policymakers. On the attorney practice-time report, we
have been working with our partners at Texas A&M’s Public Policy
Research Institute (PPRI) to develop an online form to permit attorneys
to report simultaneously for all counties in which they work.
Alternatively, a jurisdiction may require or permit attorneys to report
via a paper form to be promulgated by the Commission; however, the
county would then need to report this to the Commission. Penalties for
attorneys failing to submit a required practice-time statement by the
October 15th due date may be set by the judges locally and may include
an attorney’s removal from the list of attorneys
eligible to receive future court appointments as is common practice with
those who do not submit their required continuing legal education (CLE)
hours.

As to the new county reporting of case and fee data by attorney, the
Commission decided based on its consultation with stakeholders to build
on the existing reporting infrastructure in the annual Indigent Defense
Expenditure Report (IDER). The IDER already requires county auditors (or
treasurers) to report the aggregate number of cases paid by case type
(Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile
Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along
with the amount paid each year by November 1st (the same date as the new
reporting requirement). The new report will require this information to
be broken down by attorney. [Ed note: emphasis added.]County auditors have indicated that they
already collect this information as part of the attorney payment
process. Attorney practice-time reports entered through the attorney
portal described above will go directly to the
Commission, thereby eliminating need for the county to forward it to the
Commission. Completed reports will be pre-populated into the IDER and
show the attorney name, bar number, and practice-time percentage figure
for each attorney (with case and payment reporting fields adjacent for
completion of that part of the report). For subsequent years, attorney
information will not need to be reentered because it will appear
automatically in the IDER. Templates with a standard data format (XML)
will be developed with PPRI to permit county auditors/treasurers to
complete and then upload the report rather than manually entering the
data into the website.

This data, indexed by named, individual defense attorney, will make for a provocative round of local news stories when the first reports come out. (If you're an attorney representing more than a couple hundred or so court-appointed clients at a time, prepare to see your name in the paper!) The data under HB 1318 could already be gleaned through laborious, county-by-county open-records requests, if you knew what you were looking for, but it'll be far easier to access, and in an apples-to-apples format, if TIDC gathers and publishes the info. Too bad the state won't be gathering similar data for line prosecutors; that too, could make for provocative news fodder.

Felony revocations to TDCJ in FY2012 represent a 2.8% decrease from FY2005 (677 fewer felony revocations) and a 1.8% decrease from FY2011 (432 fewer felony revocations). However, the percentage of revocations to TDCJ for a technical violation of community supervision conditions increased from 48.5% in FY2011 to 49.0% in FY2012.

Those are essentially insignificant reductions given the scope of the decline in state prison populations witnessed over the last half decade.* Felony technical revocations among probationers declined 10.9% from 2005 to 2012, TDCJ reported, but they're still awfully high and that small decline was far out-paced by two factors on the parole side: Dramatically reduced parole revocations and marginally increased approval rates by the parole board. Both may be viewed as an expression of legislative policy. Reduced parole revocations stem from greater use of intermediate sanctions facilities (ISFs) and other diversion programs created after 2007. And higher approval rates, particularly for low-risk offenders, resulted in large part from the board finally edging closer to targets under non-binding release guidelines that the Lege mandated they create.

County-level probation revocation trends
By contrast, reducing probation revocations has been a tougher nut to crack, in part because of decentralized local control over the process among various counties and judges. Here are the relative increases and decreases for probation revocations among Texas' largest departments since just before Texas' much-vaunted probation reforms took effect:

Change in Felony Revocations to

TDCJ among largest counties, 2005-2012

CSCD

Percent
change in revocations

Dallas

-22.8%

Harris

-17.8%

Bexar

94.0%

Tarrant

-4.3%

Hidalgo

-5.3%

El
Paso

-39.6%

Travis

32.1%

Cameron

22.4%

Nueces

1.8%

**See note below on Collin Co.

.

Travis County's increase in revocations surprised me given their department's reputation for reliance on progressive sanctions, etc.. Cameron County attributes their increase to "more aggressive absconder apprehension and increased monitoring of compliance with community supervision conditions." Otherwise, Bexar County is the most prominent, chronic outlier among large counties, as has been the case since these reports began coming out.

2012 probation revocations compared

to supervised population, large counties

CSCD

% 2012 statewide probation pop

%
2012 statewide felony revocations

Dallas

13.6%

10.5%

Harris

11.5%

12.4%

Bexar

6.7%

6.8%

Tarrant

4.9%

7.1%

Hidalgo

4.0%

2.8%

El
Paso

3.7%

1.5%

Travis

3.4%

3.0%

Cameron

2.3%

1.9%

Nueces

1.7%

2.2%

Collin

1.7%

1.9%

This chart perhaps provides a better sense of relative county practices than the previous one. It compares probation populations and revocations among large counties as a proportion of their statewide total. (See this data for all counties in Appendix C to the report.) Counties in which the right-side number is significantly greater than the left-hand column may be considered more aggressive at revoking probationers than their peers. That differential is especially significant in massive Harris County because of the sheer volume they process. Tarrant's numbers here are especially striking, putting their paltry 4.3% decline from the earlier chart in context. Meanwhile, Travis, Hidalgo, and even Bexar don't appear nearly as problematic on this chart as they did in the first table.

Recidivism among probationers declining, especially DWI
According to the Dec. 2012 report, 71.7% of felony probationers revoked back to prison in FY2012 were convicted of nonviolent crimes - drug offenses (32.2%), property offenses (30.4%), and DWI (9.1%), with the rest coming from violent (17.9%) and other (10.4%) felony offenses.

Remarkably, and for the most part unheralded, recidivism rates for felony probationers have been declining. "The overall two-year re-arrest rate for the FY2005 sample was 34.4% (8,914 offenders). The overall two-year re-arrest rate for the FY2010 sample was 31.8% (8,811 offenders), which was a decrease from the FY2005 sample."

The drop in re-arrest rates for DWI offenders in those two studies was especially striking: 16.9% of the 2005 cohort was re-arrested compared to 11.5% of the 2010 cohort - a 32% drop! That's a success story nobody tells much. Re-arrest rates for probationers convicted of drug offenses declined 13% over this period; 10.6% for property offenders. But DWI stands out. Perhaps new treatment resources aimed at that group are helping.

Thursday, September 12, 2013

Find below the jump a press release the Texas Department of Public Safety issued yesterday announcing its belated "incentive" program, which should have come online last month. It should be said, they significantly scaled back the incentive program from the version on the books when the Lege required them to implement it. It still has the same name, but the previous version wasn't pegged to income levels, allowing anybody to pay off their surcharges at a discount if they paid up front instead of over three years. Still, this version remains better than a sharp stick in the eye, as my Dad likes to say.

Relatedly, under an open records request, this week I received a list of recommendations from DPS to the Lege (pdf) regarding the Driver Responsibility surcharge. Grits will blog on the recommendations soon, after I've had a chance to parse them in detail, but thought I'd put the link out there. In the meantime, here's the DPS press release on the incentive program, effective immediately:

Looking at TDCJ's 2012 Statistical Report (p. 16 of the pdf), as of Aug. 31 of last year, one notices that about 14% (57,478) of the more than 400,000 probationers statewide were categorized as "absconders." Mercifully, they were not distributed evenly among felonies and misdemeanor: TDCJ categorized 10.3% of felony probationers as absconders (24,627) and 19.5% of the misdemeanor probation population (32,851).

A fleeting thought: The entire county jail population statewide as of last month was 67,096, with the maximum, theoretical statewide capacity at 94,936 (theoretical because jails usually must keep a few empty cells at any given time due to flux, transit, and other workaday purposes, usually around 4% of the total). So statewide, extra county jail capacity could at most hold 28,000 more people, though because the jails aren't staffed for it, the practical capacity is much lower than that. All that to say, if all of Texas' absconders surrendered tomorrow, quite literally the jails couldn't hold them.

In the comments, particularly for those with first-hand knowledge, please discuss: 1) What should realistically happen with absconders, given their vast number and high probation-officer caseloads? 2) What does happen on the ground in jurisdictions where you operate? 3) Are there specific probation requirements (e.g., high fees, in-office meetings, etc.) that promote absconding? 4) What categories of low-risk offenders could be trimmed from the rolls to focus more staffing resources on absconders and high-risk offenders? And 5) If your answer to "4" was "none," what additional funding source would you propose to boost supervision levels for absconders and high-risk offenders? Finally, 6) given that absconders haven't been arrested yet, is there a chance some of them themselves fall into the "low-risk" category and are unlikely to recidivate? (Which of course, gets us back to the first query.) Those are the questions that pop into Grits' mind, looking at this remarkable data.

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